Tuesday, July 6, 2010

How does constitutional law change?

Posted by
Mark Tushnet

Basically, by replacing one set of Justices with another. But, when you look at examples of constitutional change in detail you see things changing before relevant changes in personnel occur. How does that happen?

That question has been examined in most detail in connection with the transformation of constitutional law in 1937 – the so-called New Deal constitutional revolution. At present there’s competition between an internalist account and an externalist one. According to the internalist account, developed in most detail by Barry Cushman, the constitutional revolution actually didn’t occur, at least not until Roosevelt’s appointees took their seats. Rather, the 1937 cases presented the Justices with the opportunity to elaborate in a new context the implications of their earlier reconceptualization of the scope of state and national regulatory powers over businesses affected with a public interest. The externalist account, which clearly prevails among general historians, picks up the contemporary label “switch in time” to attribute the 1937 constitutional revolution to the effect on Justice Owen Roberts of political developments, from Roosevelt’s reelection in 1936 through his Court-packing proposal.

For years it’s been clear that the “switch in time” account had some problems in accounting for detail, but it’s been given support recently by one impressive scholarly paper, by Daniel Ho and Kevin Quinn, which uses statistical techniques far more sophisticated than I can evaluate to identify what – to a reader like me – certainly looks like a dramatic change in Justice Roberts’s voting behavior, from a roughly conservative position in 1935-36, to a roughly liberal one in 1936-37, and then a reversion to the conservative position the following Term. Two recent popular accounts by Burt Solomon and Jeff Shesol are more circumspect than older externalist accounts, but still offer narratives that lend force to the externalist account, focusing in part on Justice Roberts’s personality and the role he saw himself playing on the national political and constitutional stage.

My own view at present – I’m still working on the question – is that both the externalist and internalist accounts have to have something to them. The strongest point the internalists make, I think, is that it’s implausible to think that Justice Roberts understood himself as responding to external political events. For him, and therefore for the transformation as a whole, the “changes” had to be based on his sincere understanding of what the Constitution meant. The strongest point the externalists make, I think, is that it’s implausible to think that contemporary observers of the events, among whom were extremely close observers of the Court, could have completely missed the merely legal dimension of what happened. (More on Felix Frankfurter in a succeeding post.)

I note as well that there’s some sketchy work dealing with changes in constitutional law in the late twentieth century addressing the question of constitutional change without changes in the Court’s composition. During that period, the puzzle is to explain the development of constitutional law in some areas along what are conventionally labeled liberal lines – especially gender equality and gay/lesbian rights – during a time when other areas of constitutional law moved in a conventionally conservative direction.

(There’s what I regard as an esoteric discussion among constitutional theorists about whether the only appropriate answer to the question, How does the Constitution change?, is “When it’s amended.” The esoteric part comes from the recognition that some things properly denominated parts of the Constitution do change without formal amendment – changes in the specification of abstract constitutional terms or in structural arrangements, when there’s general agreement that original understandings fail to specify the terms or arrangements in sufficient detail. If you really care – and if you’re doing constitutional history, you probably should – the esoteric terminology for this discussion involves distinguishing between constitutional interpretation and constitutional construction.)

3 comments:

Thanks a ton for this. At the risk of expanding an already huge subject, do you see the process by which "how the constitution is interpreted" as different from "how the common law is interpreted"? I'm wondering if there's something different about how the constitution changes from how the common law changes? Or do we think that the major changes in common law as also (largely, though as you point out not exclusively) driven by generational changes in who the judges are?

Another way that constitutional law changes is to respond to changes in scientific ideas and technological capacities. In THE GROWTH OF AMERICAN LAW, James Willard Hurst cites two Supreme Court cases separated by 25 years or so dealing with the question of the extent of the commerce power to navigable waters of the United States. In 1825, the year of the first case, navigable waters only went so far, and so the Marshall Court held. By the 1850s, when steamboat technology developed to allow a ship to sail upriver against a current, that technological development extended the reach of the concept of "navigable waters" -- and so the Taney Court held.

Not enough work has been done on this question; someday, I hope to work on this problem -- what I call the constitution of Bacon, Newton, and Locke.

In my federal tax studies (both as a student and teacher), I had greatly relied upon the late Boris Bittker. Then some years ago I learned of his treatise on the "Commerce Clause." It was quite interesting. But presumably because the Commerce Clause New Deal SCOTUS decisions came to be accepted, perhaps there was less of a challenge on this subject. Then along came Ed Meese and originalism in the early 1980s that took a second look at the history of the Commerce Clause. Mary's post on Prof. Hovenkamp's 1996 was most interesting, particularly regarding Justice Thomas' take on Commerce Clause history.